Are games more like coffee mugs, posters, and T-shirts, or are they more like books, magazines, and films? For purposes of the right of publicity, the answer matters. The critical question is whether games should be treated as merchandise or as expression. Three classic judicial decisions, decided in 1967, 1970, and 1973, held that the defendants needed permission to use the plaintiffs' names in their board games. These decisions judicially confirmed that games are merchandise, not something equivalent to more traditional media of expression. As merchandise, games are not like books; instead, they are akin to celebrity-embossed coffee mugs. To borrow a British term, games are “mere image carriers.” Although the last of these three judicial decisions disclaimed any intent of offering a “hard and fast rule,” three consecutive losses in three different courts offered a plausible basis for predicting how future courts would respond to similar claims involving games. These three decisions confirmed the “settled order of things”: a license is required to use someone's name or likeness (or identity) in a game. The leading treatise on the right of publicity and the Restatement (Third) of Unfair Competition subsequently endorsed the results in these cases.
In 2007 the United States Court of Appeals for the Eighth Circuit upset the settled order of things. In C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, the Eighth Circuit held that the use of professional baseball players' names and statistics in fantasy baseball games is protected by the First Amendment, the right of publicity notwithstanding. Some courts are resisting further erosions of the right of publicity. The issue remains substantially unsettled with multiple courts now considering whether permission is needed to use the identities of athletes in video games.
We argue that the rule produced by the three classic cases is an anachronism. The licensing custom created-or at least reinforced by these decisions should carry no weight. These cases were questionable when decided. They are even more so now. The gaming medium has evolved significantly over the past four decades, calling into question the longstanding treatment of games for purposes of the right of publicity.
Tedious, uncreative games marketed to children may not evoke much First Amendment sympathy against right of publicity claims, but since the three cases were decided in the late 1960s and early 1970s, several categories of commercial games have become significant, including historical wargames, role-playing games, video games, Eurogames, and other "hobby" games. Games in these categories do not constitute a few odd counter-examples to the same well-known games seen on retail shelves year after year, but many thousands of counter-examples. And unlike outmoded stereotypes of games, adults play these games too. These games communicate ideas, allowing players to interact with fiction and non-fiction, fantasy and history. Game designer Jane McGonigal thinks games can change the world. Her claim is unlikely to have ever been made about coffee mugs, but one need not go as far as McGonigal to recognize that games are a significant medium of expression.
The Supreme Court's recent decision in Brown v. Entertainment Merchants Association recognized the expressive similarities of video games to books, plays, and movies. Arguably, Brown moved at least video games out of the merchandise category and into the same category as more traditional media of expression. Games in general, however, are ready to be considered alongside other expressive works. While it is possible for a particular game to be a mere image or identity carrier, games are often much more. For purposes of the right of publicity, games are not like coffee mugs and should not be treated as such.
William K. Ford & Raizel Liebler, Games Are Not Coffee Mugs: Games and the Right of Publicity, 29 Santa Clara Computer & High Tech. L.J. 1 (2012).
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